Anthrax Mail Emergency
Delays FOIA Correspondence

During the months
of October and November, as federal, state, and local authorities have struggled
to deal with a range of unprecedented problems posed by the discovery of anthrax-laden
mail, the resulting disruptions of mail service have greatly delayed the delivery
and receipt of Freedom of Information Act-related correspondence throughout
the federal government.

From the initial
reports of anthrax illness in Florida and New York in early October, to the
discovery of anthrax in a letter mailed to the United States Senate on October
15, a series of escalating safety concerns about opening, handling, and even
being in the proximity of mail, especially in government offices in Washington,
D.C., led to disruptions in, and then total curtailments of, mail delivery service
at many federal agencies. No agency was harder hit by this than the Department
of Justice, where anthrax was found in a central mail facility and then the
widespread testing of exposed locations, and the irradiation treatment of all
undelivered mail, necessarily followed.

At the Office of
Information and Privacy, for example, mail delivery has been delayed by more
than six weeks. Interruptions of service began in early October, when at first
mail was opened only under limited conditions (which subsequently required site-specific
anthrax testing), and this soon led to the complete curtailment of mail delivery
as of October 19, when all incoming mail was diverted for irradiation in outlying
facilities. Mail service did not begin to be restored until November 26, when
the first few irradiated envelopes began to arrive, and the flow of backlogged
mail has been thin and sporadic ever since. During the week of November 26,
OIP received mail that was postmarked as early as October 12.

Many other federal
agencies have experienced comparable difficulties with their mail delivery,
particularly in the vicinity of Washington, D.C. At the Advanced FOIA Seminar
that it conducted on November 28, OIP took an informal survey of that training
program's forty participants, who represented more than thirty different agencies,
on the status of their mail delays. As gauged by that brief survey, the majority
of federal agencies are far from current in dealing with their mail.

Under such extraordinary
circumstances, the administration of the Freedom of Information Act inevitably
is delayed at all affected federal agencies. When mail delivery is delayed,
so is the commencement of the process of FOIA administration, regardless of
the time at which a FOIA request is placed into the mail by the requester or
postmarked thereafter. Simply put, the FOIA process cannot begin until the personnel
of an agency FOIA office are able to open any belatedly delivered item of mail.
Cf. Braverman, Burt A., and Chetwynd, Francis J., Information Law:
Freedom of Information, Privacy, Open Meetings and Other Access Laws, at
§ 3-4.1 (1985) (recognizing that the FOIA's time limits do not begin to
apply to a request "until it is 'logged in'").

The processing
of a FOIA request, with all applicable statutory deadlines, is triggered by
an agency's "receipt of . . . such request." 5 U.S.C. § 552(a)(6)(A)(i) (2000).
Under the Act, agency regulations prescribe the proper procedures for making
FOIA requests, see 5 U.S.C. § 552(a)(3)(A), and they, too, routinely
speak of the terms under which a FOIA request will be deemed "received." See,
e.g., 28
C.F.R. § 16.3(a) (2001) (Department of Justice FOIA regulation); cf.28
C.F.R. § 16.11(e) (same regarding circumstance in which requests "shall
not be considered received"). As a sound general rule, a FOIA request is not
considered "received" by an agency until "the date it is received by the proper
[agency] FOIA office." 28
C.F.R. § 16.3(a); seeJudicial Watch, Inc. v. United States
Dep't of Justice, No. 97-2089, slip op. at 9 (D.D.C. July 14, 1998) (applying
Department of Justice FOIA regulation to determine that "the Department of Justice
is deemed to be in receipt of" FOIA requests sent to agency components as of
"the dates [on which they were] actually received by those components"); see
alsoFOIA Update,
Vol. XVIII, No. 3, at 4 ("OIP Guidance: Guidelines for Agency Preparation
and Submission of Annual FOIA Reports") (advising agencies to calculate annual
FOIA report statistics using date of "proper receipt of a 'perfected' FOIA request").

Both FOIA officers
and FOIA requesters alike must accept that the unprecedented delays in mail
delivery that have been caused by the anthrax mail emergency during the past
two months -- and which will continue to beset many agencies as further logistical
problems and enormous backlogs of stockpiled mail are dealt with during the
coming weeks -- will of course cause corresponding delays in the administration
of the FOIA. (Even the United States District Court for the District of Columbia
has explicitly recognized as much: In a special "Mail Delivery Notice" that
appears on its Web site as of this date, it notes that "[i]t will take us several
weeks, once mail delivery resumes, to process the mail that has been delayed.")
For their part, FOIA requesters should recognize, as several courts have recognized
in more isolated situations, that the Act's time deadlines and a FOIA requester's
exhaustion of administrative remedies are necessarily delayed along with all
delays in the delivery of mail. See, e.g., Stanley v. DOD,
No. 93-4247, slip op. at 9-10 (S.D. Ill. July 28, 1998) (observing that the
case "appears to involve a breakdown of the mail system" and that "[b]ecause
the Air Force never opened the request, there was never a FOIA request"); Giaimo
v. IRS, No. 94-2463, slip op. at 4 (E.D. Mo. Feb. 23, 1996) (ruling that
because of difficulties delaying mail delivery, an agency's "duty to process
a request" was commensurately delayed).

In turn, agency
FOIA personnel should remember that FOIA requesters are largely in the dark
about the exact lengths of time that their FOIA correspondence has been delayed.
In short, requesters might think that their administrative remedies under the
Act have been properly exhausted when in fact they have not. See 5
U.S.C. § 552(a)(6)(C)(i) (providing for "constructive exhaustion" whenever a
statutory deadline in the Act has not been met). Agencies can try to remedy
this by sending acknowledgment letters in response to all delayed FOIA correspondence
as promptly as possible upon ultimate receipt, taking pains to specify the length
of the delay that was incurred in each case. They also should take pains where
necessary to advise requesters of the "cut-off" date that will be used to determine
the scopes of records responsive to their requests, in light of the lengthy
time delays involved. SeeFOIA
Update, Vol. IV, No. 4, at 14 (advising agencies to give requesters
adequate notice of the "cut-off" dates used for their requests); 28
C.F.R. § 16.4(a) (FOIA regulation specifying the date that each office "begins
its search" as the established "cut-off" date for the Department of Justice
and as the date recommended for use by other agencies). Wherever practicable,
agencies also may allow FOIA requesters to submit new requests by fax, or even
electronically if they have established that capability. SeeFOIA
Update, Vol. XIX, No. 1, at 6; FOIA
Update, Vol. X, No. 3, at 5.

Lastly, under
the circumstances, agencies should not hold FOIA requesters to any administrative
deadline of their own (e.g., a deadline for the filing of an administrative
appeal) wherever a delay in mail delivery was responsible for the deadline being
missed. AccordKennedy v. United States Dep't of Justice,
No. 93-0209, slip op. at 3 (D.D.C. July 12, 1993) (permitting FOIA requester
to refile his administrative appeal after it was established that it had been
"lost in the mail"). FOIA requesters will more readily understand and accept
the consequences of the extraordinary administrative delays that have resulted
from this unprecedented mail emergency if they realize that they apply evenhandedly
to all concerned. (posted 11/30/01)